State v. Greeley
| Decision Date | 18 October 2002 |
| Citation | 354 N.J. Super. 432,808 A.2d 108 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. John P. GREELEY, Defendant-Appellant. |
| Court | New Jersey Superior Court |
John P. Greeley, appellant pro se.
Michael M. Rubbinaccio, Morris County Prosecutor, for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).
Before Judges PRESSLER, WALLACE, and HOENS.
The opinion of the court was delivered by HOENS, J.A.D.
Defendant John P. Greeley was convicted in the Parsippany Municipal Court of driving while intoxicated. The conviction was based on a plea of guilty which was subject to an appeal of the denial of his motion to suppress the results of a breathalyzer test. Following his appeal and trial de novo before the Law Division, his suppression motion was again denied and he was again found guilty. Appropriate fines and penalties were imposed. We reverse the denial of the suppression motion, vacate the conviction and remand the matter for a new trial.
Greeley was arrested for driving while intoxicated at approximately 4:45 a.m. on October 17, 1998, and was taken immediately to police headquarters in Parsippany. There, he was advised that he was required to submit to breath tests and warned of the consequences if he failed or refused to cooperate. He was also advised of his right to have independent tests conducted and samples taken at his own expense. Thereafter, two breathalyzer tests were conducted and a videotape recording was made of the administration of the tests. Both of those tests produced readings which were over the legal limit and the officer who performed the tests explained those results to Greeley. At that point, Greeley asked the officer twice more to repeat the breath test but each request was refused. He was, however, told again that he had a right to have an independent test performed. At the same time, he was advised that he could not be released from the police station unless a relative or friend came to pick him up, or until the police deemed him sufficiently sober to be declared fit to drive himself. The police permitted him to use the telephone and he made a number of calls but eventually told the officer in charge that he did not know anyone else in the area who he could call. The police then placed him in a holding cell, checking on him every half hour until 9:10 a.m. when he was released from custody.
Greeley filed his motion to suppress the results of the breathalyzer tests in municipal court where an evidentiary hearing was conducted. As a part of the hearing, the municipal court judge reviewed the videotape which showed the procedures relating to the breath tests at the police station and made some limited observations about the contents of the tape on the record. Patrolman Joseph J. Chmura, the officer who administered the breath tests, testified. Greeley did not testify. The motion to suppress was denied, a motion for leave to pursue an interlocutory appeal of the suppression motion was denied and subsequently, Greeley entered a plea of guilty with a reservation that preserved his right to appeal from the denial of the suppression motion.1 Solely for reasons relating to the coordination of scheduling, there was a significant passage of time prior to the finalization of the guilty plea.
Greeley timely filed his appeal to the Law Division and appeared for a hearing on the trial de novo. By that time, he was proceeding pro se and he personally appeared to argue his case. On the first day scheduled for the hearing on the appeal, Greeley made statements on the record that appeared to be at odds with the transcripts of the municipal court proceeding. When he was reminded that the matter was limited to the factual record from the municipal court, he advised the court that all of his statements could be verified by a review of the videotape that the municipal judge had been shown and which had been marked into evidence but the substance of which had not been independently transcribed. It was thereafter discovered that the videotape had not been preserved and was no longer available for the court to review. Because there was no ground on which to conclude that the tape had been intentionally destroyed, the Law Division judge denied Greeley's application for a dismissal of the charges and assumed that the tape would have included the statements that Greeley represented to the court had been made by him concerning the assertion of his right to have an independent test performed. The judge, for reasons expressed on the record, refused to overturn the municipal court's decision on the suppression motion and the guilty verdict was therefore sustained. This appeal followed.
Greeley first appeals from the decision of the Law Division judge refusing to grant a dismissal of the charges against him based upon the loss of the videotape. The focus of the court in evaluating whether the loss of evidence amounts to a violation of due process is upon "(1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant [has been] prejudiced" by the loss of the evidence. State v. Dreher, 302 N.J.Super. 408, 483, 695 A.2d 672 (App.Div.1997), certif. denied, 152 N.J. 10, 702 A.2d 349 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 723 (1998). All parties to this proceeding concede that the loss of the videotape was entirely inadvertent, and no party suggests that the government or the police department intentionally destroyed it or in any way acted in bad faith respecting it. The focus of our inquiry, then, must be upon whether the videotape was material to the defense and whether the defendant has been prejudiced by its loss. Here, the significance of the videotape is limited; its only relevance to this proceeding is to the issue of whether Greeley asked for an opportunity to have an independent test performed and, if he did, the response of the officer to whom that request was made. In light of the fact that the Law Division judge permitted Greeley to state his version of the facts that would have been evident from the tape itself and afforded him all favorable inferences from the information he claimed that the tape would have revealed, the loss of the tape itself is irrelevant and the defendant is not prejudiced. Nothing in the record supports the suggestion that the loss of the tape had any bearing on the adjudication of Greeley's guilt or innocence save for his alleged demand for an opportunity to have an independent blood test performed. As a consequence, refusing to dismiss the charges solely because of the lost tape was entirely appropriate.
As a result of the foregoing, the facts are entirely undisputed. Greeley, after being advised by Officer Chmura that he had failed the breathalyzer twice, asked twice more that the test be performed again and was refused. Officer Chmura, however, then reminded Greeley that he could have an independent test performed. When Greeley asked how that could be accomplished, Officer Chmura advised him that he could go to the local hospital or call a doctor to administer the test. Although there is no written or formal policy adopted by the police department, the officer also advised him that he could be released only if a friend or family member came to take custody of him, failing which he would need to remain until he was deemed sufficiently sober to drive. At all times his automobile was impounded and he would not have been able to access it for purposes of transportation had he been released. It had already been determined that he would be released on his own recognizance (ROR) and without the need for posting bail. He was permitted to use a telephone without charge and made three telephone calls trying to find a friend or family member in the general vicinity to come and get him without success. When he explained to Officer Caridi, who was then the officer in charge of him, that he lived in New York, knew no one in the area who could come for him, and again asked how to arrange for...
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